90 Iowa 100 | Iowa | 1894
Lead Opinion
The material facts alleged in the petition and admitted by the demurrer are substantially as follows: Plaintiff' is the widow of R. S. Strong, who died in the year 1875. During his lifetime he became the owner of the northwest quarter of the northeast quarter of section 8, township 73, range 2, in Louisa county, and he and the plaintiff occupied it as their homestead until his death occurred, in 1875. In December of that year, the plaintiff, as the widow of decedent, elected to retain the premises described as a homestead, for life, and, on her application, an order that she so retain it was made by the circuit court of Louisa county. Since that time, she, with the children of her late husband, have continuously occupied the premises as a homestead. Seven children of the deceased survived him, and were the owners in fee of the premises, subject to the right of plaintiff to possess and occupy it during life. In December, 1881, one of the daughters of decedent died, unmarried, leaving as her sole heir the plaintiff. In April, 1880,
The question we are required to determine is, whether the interest in the premises which plaintiff acquired by the death of her daughter was subject to sale under the judgment described. The plaintiff rightly claims that the judgment was not a lien upon her homestead right, and she contends that the undivided one seventh of the premises in fee was merged in her homestead right, and thus became exempt from the lien of the judgment, and from the execution to satisfy it. A merger occurs when a greater estate and a less coincide and meet in one and the same person without any intermediate estate. In such a case the less is merged in the greater estate, not the greater in the less. An estate for years or for life would be merged in an estate in fee; and, as a general rule, the different estates must be held in the same legal right. 2 Bouv. Law Diet., tit. “Merger4 Kent, Comm. [Id Ed.], 114; 15 Am. and Eng. Encyclopedia of Law, 313, and authorities therein cited. In 4 Kent, Comm., 116, it is said of the merger of estates: “If they are held in different legal rights, there will be no merger,
Dissenting Opinion
(dissenting).
I am not able to concur in either” the reasoning or conclusion of the majority opinion. I make no contention with the rule announced as to the merger of estates generally. I do not, however, think it of vital importance in this case. I regard the • question involved as a purely statutory one. The homestead right, even though it may be regarded as an estate in legal contemplation, is of that